Bill Text: NY A06728 | 2013-2014 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to modification of temporary maintenance awards and maintenance obligations.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2014-06-02 - enacting clause stricken [A06728 Detail]
Download: New_York-2013-A06728-Introduced.html
Bill Title: Relates to modification of temporary maintenance awards and maintenance obligations.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2014-06-02 - enacting clause stricken [A06728 Detail]
Download: New_York-2013-A06728-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6728
2013-2014 Regular Sessions
I N A S S E M B L Y
April 17, 2013
___________
Introduced by M. of A. PAULIN -- read once and referred to the Committee
on Judiciary
AN ACT to amend the domestic relations law, in relation to modifications
of temporary maintenance awards and maintenance obligations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 5-a of part B of section 236 of the domestic
2 relations law, as added by chapter 371 of the laws of 2010, is amended
3 to read as follows:
4 5-a. Temporary maintenance awards. a. Except where the parties have
5 entered into an agreement pursuant to subdivision three of this part
6 providing for maintenance, in any matrimonial action the court shall
7 make its award for temporary maintenance pursuant to the provisions of
8 this subdivision.
9 b. For purposes of this subdivision, the following definitions shall
10 be used:
11 (1) "Payor" shall mean the spouse with the higher income.
12 (2) "Payee" shall mean the spouse with the lower income.
13 (3) ["Length of marriage" shall mean the period from the date of
14 marriage until the date of commencement of action.
15 (4)] "Income" shall mean[:
16 (a)] income as defined in the child support standards act and codified
17 in section two hundred forty of this article and section four hundred
18 thirteen of the family court act[; and
19 (b) income from income producing property to be distributed pursuant
20 to subdivision five of this part].
21 [(5)] (4) "Income cap" shall mean up to and including five hundred
22 thousand dollars of the payor's annual income; provided, however, begin-
23 ning January thirty-first, two thousand [twelve] FOURTEEN and every two
24 years thereafter, the [payor's annual] income CAP amount shall increase
25 by the product of the average annual percentage changes in the consumer
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09639-04-3
A. 6728 2
1 price index for all urban consumers (CPI-U) as published by the United
2 States department of labor bureau of labor statistics for the two year
3 period rounded to the nearest one thousand dollars. The office of court
4 administration shall determine and publish the income cap.
5 [(6)] (5) "Guideline amount of temporary maintenance" shall mean the
6 sum derived by the application of paragraph c OR D of this subdivision.
7 [(7) "Guideline duration" shall mean the durational period determined
8 by the application of paragraph d of this subdivision.
9 (8) "Presumptive award" shall mean the guideline amount of the tempo-
10 rary maintenance award for the guideline duration prior to the court's
11 application of any adjustment factors as provided in subparagraph one of
12 paragraph e of this subdivision.
13 (9)] (6) "Self-support reserve" shall mean the self-support reserve as
14 defined in the child support standards act and codified in section two
15 hundred forty of this article and section four hundred thirteen of the
16 family court act.
17 c. [The court shall determine the guideline amount of temporary main-
18 tenance in accordance with the provisions of this paragraph after deter-
19 mining the income of the parties:
20 (1) Where the payor's income is up to and including the income cap:
21 (a) the court shall subtract twenty percent of the income of the payee
22 from thirty percent of the income up to the income cap of the payor.
23 (b) the court shall then multiply the sum of the payor's income up to
24 and including the income cap and all of the payee's income by forty
25 percent.
26 (c) the court shall subtract the income of the payee from the amount
27 derived from clause (b) of this subparagraph.
28 (d) the guideline amount of temporary maintenance shall be the lower
29 of the amounts determined by clauses (a) and (c) of this subparagraph;
30 if the amount determined by clause (c) of this subparagraph is less than
31 or equal to zero, the guideline amount shall be zero dollars.
32 (2) Where the income of the payor exceeds the income cap:
33 (a) the court shall determine the guideline amount of temporary main-
34 tenance for that portion of the payor's income that is up to and includ-
35 ing the income cap according to subparagraph one of this paragraph, and,
36 for the payor's income in excess of the income cap, the court shall
37 determine any additional guideline amount of temporary maintenance
38 through consideration of the following factors:
39 (i) the length of the marriage;
40 (ii) the substantial differences in the incomes of the parties;
41 (iii) the standard of living of the parties established during the
42 marriage;
43 (iv) the age and health of the parties;
44 (v) the present and future earning capacity of the parties;
45 (vi) the need of one party to incur education or training expenses;
46 (vii) the wasteful dissipation of marital property;
47 (viii) the transfer or encumbrance made in contemplation of a matrimo-
48 nial action without fair consideration;
49 (ix) the existence and duration of a pre-marital joint household or a
50 pre-divorce separate household;
51 (x) acts by one party against another that have inhibited or continue
52 to inhibit a party's earning capacity or ability to obtain meaningful
53 employment. Such acts include but are not limited to acts of domestic
54 violence as provided in section four hundred fifty-nine-a of the social
55 services law;
56 (xi) the availability and cost of medical insurance for the parties;
A. 6728 3
1 (xii) the care of the children or stepchildren, disabled adult chil-
2 dren or stepchildren, elderly parents or in-laws that has inhibited or
3 continues to inhibit a party's earning capacity or ability to obtain
4 meaningful employment;
5 (xiii) the inability of one party to obtain meaningful employment due
6 to age or absence from the workforce;
7 (xiv) the need to pay for exceptional additional expenses for the
8 child or children, including, but not limited to, schooling, day care
9 and medical treatment;
10 (xv) the tax consequences to each party;
11 (xvi) marital property subject to distribution pursuant to subdivision
12 five of this part;
13 (xvii) the reduced or lost earning capacity of the party seeking
14 temporary maintenance as a result of having foregone or delayed educa-
15 tion, training, employment or career opportunities during the marriage;
16 (xviii) the contributions and services of the party seeking temporary
17 maintenance as a spouse, parent, wage earner and homemaker and to the
18 career or career potential of the other party; and
19 (xix) any other factor which the court shall expressly find to be just
20 and proper.
21 (b)] WHEN THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
22 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
23 AS FOLLOWS:
24 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
25 THIRTY PERCENT OF THE PAYOR'S INCOME.
26 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
27 THE PAYEE'S INCOME BY FORTY PERCENT.
28 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
29 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
30 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
31 GRAPHS ONE AND THREE OF THIS PARAGRAPH.
32 (5) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE AMOUNT
33 DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF THE
34 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS THAN OR
35 EQUAL TO ZERO, THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE
36 ZERO DOLLARS.
37 D. WHEN THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
38 DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE AS FOLLOWS:
39 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
40 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
41 INCOMES OF PAYOR AND PAYEE.
42 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
43 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
44 INCOMES OF PAYOR AND PAYEE UP TO AND INCLUDING THE INCOME CAP.
45 (3) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE EITHER:
46 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
47 OR
48 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
49 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
50 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH G OF THIS SUBDIVISION.
51 (4) In any decision made pursuant to CLAUSE (B) OF SUBPARAGRAPH THREE
52 OF this [subparagraph] PARAGRAPH, the court shall set forth the factors
53 it considered and the reasons for its WRITTEN OR ORAL decision. Such
54 written order may not be waived by either party or counsel.
55 [(3)] E. Notwithstanding the provisions of this [paragraph] SUBDIVI-
56 SION, where the guideline amount of temporary maintenance would reduce
A. 6728 4
1 the payor's income below the self-support reserve for a single person,
2 [the presumptive amount of] the guideline amount of temporary mainte-
3 nance shall be the difference between the payor's income and the self-
4 support reserve. If the payor's income is below the self-support
5 reserve, there is a rebuttable presumption that no temporary maintenance
6 is awarded.
7 [d. The court shall determine the guideline duration of temporary
8 maintenance by considering the length of the marriage.]
9 F. Temporary maintenance shall terminate upon the issuance of the
10 final [award] DETERMINATION of maintenance or the death of either party,
11 whichever occurs first.
12 [e.] G. (1) The court shall order the [presumptive award] GUIDELINE
13 AMOUNT of temporary maintenance in accordance with paragraphs c and d of
14 this subdivision, unless the court finds that the [presumptive award]
15 GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or inappropriate and
16 adjusts the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
17 nance accordingly based upon consideration of the following factors:
18 (a) [the standard of living of the parties established during the
19 marriage;
20 (b)] the age and health of the parties;
21 [(c)] (B) the PRESENT OR FUTURE earning capacity of the parties,
22 INCLUDING THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
23 [(d) the need of one party to incur education or training expenses;
24 (e)] (C) the wasteful dissipation of marital property[;
25 (f) the transfer], INCLUDING TRANSFERS or [encumbrance] ENCUMBRANCES
26 made in contemplation of a matrimonial action without fair consider-
27 ation;
28 [(g)] (D) the existence and duration of a pre-marital joint household
29 or a pre-divorce separate household;
30 [(h)] (E) acts by one party against another that have inhibited or
31 continue to inhibit a party's earning capacity or ability to obtain
32 meaningful employment[. Such acts include but are not limited to acts of
33 domestic violence as provided in section four hundred fifty-nine-a of
34 the social services law;
35 (i)] OR THAT CONSTITUTE EGREGIOUS CONDUCT;
36 (F) the availability and cost of medical insurance for the parties;
37 [(j)] (G) the care of [the] children or stepchildren, disabled adult
38 children or stepchildren, elderly parents or in-laws PROVIDED DURING THE
39 MARRIAGE that [has inhibited or continues to inhibit] INHIBITS a party's
40 earning capacity [or ability to obtain meaningful employment];
41 [(k) the inability of one party to obtain meaningful employment due to
42 age or absence from the workforce;
43 (l) the need to pay for exceptional additional expenses for the child
44 or children, including, but not limited to, schooling, day care and
45 medical treatment;
46 (m)] (H) the tax consequences to each party;
47 (I) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
48 MARRIAGE; AND
49 [(n) marital property subject to distribution pursuant to subdivision
50 five of this part;
51 (o) the reduced or lost earning capacity of the party seeking tempo-
52 rary maintenance as a result of having foregone or delayed education,
53 training, employment or career opportunities during the marriage;
54 (p) the contributions and services of the party seeking temporary
55 maintenance as a spouse, parent, wage earner and homemaker and to the
56 career or career potential of the other party; and
A. 6728 5
1 (q)] (J) any other factor which the court shall expressly find to be
2 just and proper.
3 (2) Where the court finds that the [presumptive award of temporary
4 maintenance] GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE is unjust or
5 inappropriate and the court adjusts the [presumptive award] GUIDELINE
6 AMOUNT of temporary maintenance pursuant to this paragraph, the court
7 shall set forth, in a written [order] OR ORAL DECISION, the [amount of
8 the unadjusted presumptive award] GUIDELINE AMOUNT of temporary mainte-
9 nance, the factors it considered, and the reasons that the court
10 adjusted the [presumptive award] GUIDELINE AMOUNT of temporary mainte-
11 nance. [Such written order shall not be waived by either party or coun-
12 sel.]
13 (3) Where either or both parties are unrepresented, the court shall
14 not enter a temporary maintenance order unless the COURT INFORMS THE
15 unrepresented party or parties [have been informed] of the [presumptive
16 award] GUIDELINE AMOUNT of temporary maintenance.
17 [f. A validly executed agreement or stipulation voluntarily entered
18 into between the parties in an action commenced after the effective date
19 of this subdivision presented to the court for incorporation in an order
20 shall include a provision stating that the parties have been advised of
21 the provisions of this subdivision, and that the presumptive award
22 provided for therein results in the correct amount of temporary mainte-
23 nance. In the event that such agreement or stipulation deviates from the
24 presumptive award of temporary maintenance, the agreement or stipulation
25 must specify the amount that such presumptive award of temporary mainte-
26 nance would have been and the reason or reasons that such agreement or
27 stipulation does not provide for payment of that amount. Such provision
28 may not be waived by either party or counsel. Nothing contained in this
29 subdivision shall be construed to alter the rights of the parties to
30 voluntarily enter into validly executed agreements or stipulations which
31 deviate from the presumptive award of temporary maintenance provided
32 such agreements or stipulations comply with the provisions of this
33 subdivision. The court shall, however, retain discretion with respect to
34 temporary, and post-divorce maintenance awards pursuant to this section.
35 Any court order incorporating a validly executed agreement or stipu-
36 lation which deviates from the presumptive award of temporary mainte-
37 nance shall set forth the court's reasons for such deviation.
38 g.] H. When a party has defaulted and/or the court is otherwise
39 presented with insufficient evidence to determine [gross] income, the
40 court shall order the temporary maintenance award based upon the needs
41 of the payee or the standard of living of the parties prior to commence-
42 ment of the divorce action, whichever is greater. Such order may be
43 retroactively modified upward without a showing of change in circum-
44 stances upon a showing of newly discovered or obtained evidence.
45 [h.] I. In any action or proceeding for modification of an order of
46 maintenance or alimony existing prior to the effective date of this
47 subdivision, brought pursuant to this article, the temporary maintenance
48 guidelines set forth in this subdivision shall not constitute a change
49 of circumstances warranting modification of such support order.
50 [i. In any decision made pursuant to this subdivision the court shall,
51 where appropriate, consider the effect of a barrier to remarriage, as
52 defined in subdivision six of section two hundred fifty-three of this
53 article, on the factors enumerated in this subdivision.]
54 S 2. Subdivision 6 of part B of section 236 of the domestic relations
55 law, as amended by chapter 371 of the laws of 2010, is amended to read
56 as follows:
A. 6728 6
1 6. Post-divorce maintenance awards. a. Except where the parties have
2 entered into an agreement pursuant to subdivision three of this part
3 providing for maintenance, in any matrimonial action the court [may
4 order maintenance in such amount as justice requires, having regard for
5 the standard of living of the parties established during the marriage,
6 whether the party in whose favor maintenance is granted lacks sufficient
7 property and income to provide for his or her reasonable needs and
8 whether the other party has sufficient property or income to provide for
9 the reasonable needs of the other and the circumstances of the case and
10 of the respective parties. Such order shall be effective as of the date
11 of the application therefor, and any retroactive amount of maintenance
12 due shall be paid in one sum or periodic sums, as the court shall
13 direct, taking into account any amount of temporary maintenance which
14 has been paid. In determining the amount and duration of maintenance the
15 court shall consider:
16 (1) the income and property of the respective parties including mari-
17 tal property distributed pursuant to subdivision five of this part;
18 (2) the length of the marriage;
19 (3) the age and health of both parties;
20 (4) the present and future earning capacity of both parties;
21 (5) the need of one party to incur education or training expenses;
22 (6) the existence and duration of a pre-marital joint household or a
23 pre-divorce separate household;
24 (7) acts by one party against another that have inhibited or continue
25 to inhibit a party's earning capacity or ability to obtain meaningful
26 employment. Such acts include but are not limited to acts of domestic
27 violence as provided in section four hundred fifty-nine-a of the social
28 services law;
29 (8) the ability of the party seeking maintenance to become self-sup-
30 porting and, if applicable, the period of time and training necessary
31 therefor;
32 (9) reduced or lost lifetime earning capacity of the party seeking
33 maintenance as a result of having foregone or delayed education, train-
34 ing, employment, or career opportunities during the marriage;
35 (10) the presence of children of the marriage in the respective homes
36 of the parties;
37 (11) the care of the children or stepchildren, disabled adult children
38 or stepchildren, elderly parents or in-laws that has inhibited or
39 continues to inhibit a party's earning capacity;
40 (12) the inability of one party to obtain meaningful employment due to
41 age or absence from the workforce;
42 (13) the need to pay for exceptional additional expenses for the
43 child/children, including but not limited to, schooling, day care and
44 medical treatment;
45 (14) the tax consequences to each party;
46 (15) the equitable distribution of marital property;
47 (16) contributions and services of the party seeking maintenance as a
48 spouse, parent, wage earner and homemaker, and to the career or career
49 potential of the other party;
50 (17) the wasteful dissipation of marital property by either spouse;
51 (18) the transfer or encumbrance made in contemplation of a matrimoni-
52 al action without fair consideration;
53 (19) the loss of health insurance benefits upon dissolution of the
54 marriage, and the availability and cost of medical insurance for the
55 parties; and
A. 6728 7
1 (20) any other factor which the court shall expressly find to be just
2 and proper] SHALL MAKE THE AWARD FOR POST-DIVORCE MAINTENANCE PURSUANT
3 TO THE PROVISIONS OF THIS SUBDIVISION.
4 b. [In any decision made pursuant to this subdivision, the court shall
5 set forth the factors it considered and the reasons for its decision and
6 such may not be waived by either party or counsel.
7 c. The court may award permanent maintenance, but an award of mainte-
8 nance shall terminate upon the death of either party or upon the recipi-
9 ent's valid or invalid marriage, or upon modification pursuant to para-
10 graph b of subdivision nine of this part or section two hundred
11 forty-eight of this chapter.
12 d. In any decision made pursuant to this subdivision the court shall,
13 where appropriate, consider the effect of a barrier to remarriage, as
14 defined in subdivision six of section two hundred fifty-three of this
15 article, on the factors enumerated in paragraph a of this subdivision.]
16 FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL BE
17 USED:
18 (1) "PAYOR" SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
19 (2) "PAYEE" SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
20 (3) "INCOME" SHALL MEAN:
21 (I) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
22 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
23 THIRTEEN OF THE FAMILY COURT ACT, EXCEPT THAT TEMPORARY MAINTENANCE PAID
24 PURSUANT TO SUBDIVISION FIVE-A OF THIS PART AND SPOUSAL SUPPORT PAID
25 PURSUANT TO SECTION FOUR HUNDRED TWELVE OF THE FAMILY COURT ACT, SHALL
26 NOT BE DEDUCTED FROM PAYOR'S INCOME; AND
27 (II) INCOME FROM INCOME-PRODUCING PROPERTY DISTRIBUTED OR TO BE
28 DISTRIBUTED PURSUANT TO SUBDIVISION FIVE OF THIS PART.
29 (4) "INCOME CAP" SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
30 DOLLARS OF THE PAYOR'S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
31 ARY THIRTY-FIRST, TWO THOUSAND FOURTEEN AND EVERY TWO YEARS THEREAFTER,
32 THE INCOME CAP SHALL INCREASE BY THE PRODUCT OF THE AVERAGE ANNUAL
33 PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
34 (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF LABOR BUREAU OF
35 LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE NEAREST ONE
36 THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL DETERMINE AND
37 PUBLISH THE INCOME CAP.
38 (5) "GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
39 DOLLAR AMOUNT DERIVED BY THE APPLICATION OF PARAGRAPH C OR D OF THIS
40 SUBDIVISION.
41 (6) "GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE" SHALL MEAN THE
42 DURATIONAL PERIOD DETERMINED BY THE APPLICATION OF PARAGRAPH E OF THIS
43 SUBDIVISION.
44 (7) "POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION" SHALL MEAN THE
45 GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AND THE GUIDELINE DURATION
46 OF POST-DIVORCE MAINTENANCE.
47 (8) "POST-DIVORCE MAINTENANCE" SHALL MEAN A SUM TO BE PAID PURSUANT TO
48 A FINAL COURT ORDER OR DECREE DISSOLVING OR ANNULLING A MARRIAGE,
49 DECLARING THE NULLITY OF A MARRIAGE, OR A VALID AGREEMENT, BETWEEN THE
50 PARTIES, BY ONE PARTY TO THE OTHER.
51 (9) LENGTH OF MARRIAGE SHALL MEAN THE PERIOD FROM THE DATE OF MARRIAGE
52 UNTIL THE DATE OF COMMENCEMENT OF ACTION.
53 (10) "SELF-SUPPORT RESERVE" SHALL MEAN THE SELF-SUPPORT RESERVE AS IS
54 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
55 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
56 FAMILY COURT ACT.
A. 6728 8
1 C. WHEN THE PAYOR'S INCOME IS LOWER THAN OR EQUAL TO THE INCOME CAP,
2 THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTE-
3 NANCE AS FOLLOWS:
4 (1) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE PAYEE'S INCOME FROM
5 THIRTY PERCENT OF THE PAYOR'S INCOME.
6 (2) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR'S INCOME AND
7 THE PAYEE'S INCOME BY FORTY PERCENT.
8 (3) THE COURT SHALL SUBTRACT THE PAYEE'S INCOME FROM THE AMOUNT
9 DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH.
10 (4) THE COURT SHALL DETERMINE THE LOWER OF AMOUNTS DERIVED BY SUBPARA-
11 GRAPHS ONE AND THREE OF THIS PARAGRAPH.
12 (5) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE THE
13 AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH EXCEPT THAT, IF
14 THE AMOUNT DETERMINED BY SUBPARAGRAPH FOUR OF THIS PARAGRAPH IS LESS
15 THAN OR EQUAL TO ZERO, THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE
16 SHALL BE ZERO DOLLARS.
17 (6) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
18 GRAPH, WHERE THE ANNUAL AMOUNT OF POST-DIVORCE MAINTENANCE WOULD REDUCE
19 THE PAYOR'S INCOME BELOW THE SELF-SUPPORT RESERVE FOR A SINGLE PERSON,
20 THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION SHALL BE THE DIFFER-
21 ENCE BETWEEN THE PAYOR'S INCOME AND THE SELF-SUPPORT RESERVE.
22 D. WHEN THE PAYOR'S INCOME EXCEEDS THE INCOME CAP, THE COURT SHALL
23 DETERMINE THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE AS FOLLOWS:
24 (1) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
25 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE TOTAL
26 INCOMES OF PAYOR AND PAYEE.
27 (2) THE COURT SHALL PERFORM THE CALCULATIONS SET FORTH IN SUBPARA-
28 GRAPHS ONE THROUGH FOUR OF PARAGRAPH C OF THIS SUBDIVISION FOR THE
29 INCOMES OF PAYOR AND PAYEE UP TO AND INCLUDING THE INCOME CAP.
30 (3) THE GUIDELINE AMOUNT OF POST-DIVORCE MAINTENANCE SHALL BE EITHER:
31 (A) THE CALCULATION DERIVED FROM SUBPARAGRAPH ONE OF THIS PARAGRAPH;
32 OR
33 (B) THE AMOUNT DERIVED FROM SUBPARAGRAPH TWO OF THIS PARAGRAPH PLUS AN
34 AMOUNT THAT THE COURT SHALL DETERMINE BY CONSIDERATION OF THE FACTORS
35 SET FORTH IN SUBPARAGRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION.
36 (4) IN ANY DECISION MADE PURSUANT TO CLAUSE (B) OF SUBPARAGRAPH THREE
37 OF THIS PARAGRAPH, THE COURT SHALL SET FORTH THE FACTORS IT CONSIDERED
38 AND THE REASONS FOR ITS WRITTEN OR ORAL DECISION.
39 E. THE GUIDELINE DURATION OF POST-DIVORCE MAINTENANCE SHALL BE DETER-
40 MINED AS FOLLOWS:
41 (1) THE COURT SHALL DETERMINE THE GUIDELINE DURATION OF POST-DIVORCE
42 MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
43 LENGTH OF THE MARRIAGE % OF THE LENGTH OF THE MARRIAGE
44 FOR WHICH MAINTENANCE
45 WILL BE PAYABLE
46 0 UP TO AND INCLUDING 5 YEARS 30%
47 MORE THAN 5, UP TO AND INCLUDING 7.5 YEARS 40%
48 MORE THAN 7.5, UP TO AND INCLUDING 10 YEARS 50%
49 MORE THAN 10, UP TO AND INCLUDING 12.5 YEARS 60%
50 MORE THAN 12.5, UP TO AND INCLUDING 15 YEARS 70%
51 MORE THAN 15, UP TO AND INCLUDING 17.5 YEARS 80%
52 MORE THAN 17.5, UP TO AND INCLUDING 20 YEARS 90%
53 MORE THAN 20, UP TO AND INCLUDING 25 YEARS 100%
54 MORE THAN 25 YEARS NONDURATIONAL
55 (2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (1) OF THIS PARA-
56 GRAPH, MAINTENANCE SHALL TERMINATE UPON THE DEATH OF THE PAYOR OR PAYEE.
A. 6728 9
1 F. (1) THE COURT SHALL ORDER THE POST-DIVORCE MAINTENANCE GUIDELINE
2 OBLIGATION IN ACCORDANCE WITH PARAGRAPHS C, D AND E OF THIS SUBDIVISION,
3 UNLESS THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE OBLI-
4 GATION IS UNJUST OR INAPPROPRIATE AND ADJUSTS THE POST-DIVORCE MAINTE-
5 NANCE GUIDELINE OBLIGATION ACCORDINGLY BASED UPON CONSIDERATION OF THE
6 FOLLOWING FACTORS:
7 (A) THE AGE AND HEALTH OF THE PARTIES;
8 (B) THE PRESENT OR FUTURE EARNING CAPACITY OF THE PARTIES, INCLUDING
9 THE HISTORY OF LIMITED PARTICIPATION IN THE WORKFORCE;
10 (C) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY, INCLUDING TRANSFERS
11 OR ENCUMBRANCES OF PROPERTY MADE IN CONTEMPLATION OF A MATRIMONIAL
12 ACTION WITHOUT FAIR CONSIDERATION;
13 (D) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
14 PRE-DIVORCE SEPARATE HOUSEHOLD;
15 (E) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
16 TO INHIBIT A PARTY'S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
17 EMPLOYMENT OR THAT CONSTITUTE EGREGIOUS CONDUCT;
18 (F) THE AVAILABILITY AND COST OF MEDICAL INSURANCE FOR THE PARTIES;
19 (G) THE CARE OF CHILDREN OR STEPCHILDREN, DISABLED ADULT CHILDREN OR
20 STEPCHILDREN, ELDERLY PARENTS OR IN-LAWS PROVIDED DURING THE MARRIAGE
21 THAT INHIBITS A PARTY'S EARNING CAPACITY;
22 (H) THE TAX CONSEQUENCES TO EACH PARTY;
23 (I) THE EQUITABLE DISTRIBUTION OF THE MARITAL PROPERTY;
24 (J) THE EFFECT OF A BARRIER TO REMARRIAGE, AS DEFINED IN SUBDIVISION
25 SIX OF SECTION TWO HUNDRED FIFTY-THREE OF THIS ARTICLE;
26 (K) ANY OTHER FACTOR WHICH THE COURT SHALL EXPRESSLY FIND TO BE JUST
27 AND PROPER.
28 (2) WHERE THE COURT FINDS THAT THE POST-DIVORCE MAINTENANCE GUIDELINE
29 OBLIGATION IS UNJUST OR INAPPROPRIATE AND THE COURT ADJUSTS THE POST-DI-
30 VORCE MAINTENANCE GUIDELINE OBLIGATION PURSUANT TO THIS PARAGRAPH, THE
31 COURT SHALL SET FORTH, IN A WRITTEN OR ORAL DECISION, THE AMOUNT OF THE
32 UNADJUSTED POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION, THE FACTORS IT
33 CONSIDERED, AND THE REASONS THAT THE COURT ADJUSTED THE POST-DIVORCE
34 MAINTENANCE OBLIGATION.
35 G. WHERE EITHER OR BOTH PARTIES ARE UNREPRESENTED, THE COURT SHALL NOT
36 ENTER A MAINTENANCE ORDER OR JUDGMENT UNLESS THE COURT INFORMS THE
37 UNREPRESENTED PARTY OR PARTIES OF THE POST-DIVORCE MAINTENANCE GUIDELINE
38 OBLIGATION.
39 H. A VALIDLY EXECUTED AGREEMENT OR STIPULATION VOLUNTARILY ENTERED
40 INTO BETWEEN THE PARTIES IN AN ACTION COMMENCED AFTER THE EFFECTIVE DATE
41 OF THIS PARAGRAPH PRESENTED TO THE COURT FOR INCORPORATION IN AN ORDER
42 OR JUDGMENT SHALL INCLUDE A PROVISION STATING THAT THE PARTIES HAVE BEEN
43 ADVISED OF THE PROVISIONS OF THIS PARAGRAPH, AND THAT THE POST-DIVORCE
44 MAINTENANCE PROVIDED FOR THEREIN WOULD PRESUMPTIVELY RESULT IN THE
45 AMOUNT OF POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION. IN THE EVENT
46 THAT SUCH AGREEMENT OR STIPULATION DEVIATES FROM THE POST-DIVORCE MAIN-
47 TENANCE GUIDELINE OBLIGATION, THE AGREEMENT OR STIPULATION MUST SPECIFY
48 THE AMOUNT THAT SUCH POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION WOULD
49 HAVE BEEN AND THE REASON OR REASONS THAT SUCH AGREEMENT OR STIPULATION
50 DOES NOT PROVIDE FOR PAYMENT OF THAT AMOUNT. SUCH PROVISION MAY NOT BE
51 WAIVED BY EITHER PARTY OR COUNSEL. NOTHING CONTAINED IN THIS PARAGRAPH
52 SHALL BE CONSTRUED TO ALTER THE RIGHTS OF THE PARTIES TO VOLUNTARILY
53 ENTER INTO VALIDLY EXECUTED AGREEMENTS OR STIPULATIONS WHICH DEVIATE
54 FROM THE POST-DIVORCE MAINTENANCE GUIDELINE OBLIGATION PROVIDED SUCH
55 AGREEMENTS OR STIPULATIONS COMPLY WITH THE PROVISIONS OF THIS PARAGRAPH.
A. 6728 10
1 I. WHEN A PARTY HAS DEFAULTED AND/OR THE COURT IS OTHERWISE PRESENTED
2 WITH INSUFFICIENT EVIDENCE TO DETERMINE INCOME, THE COURT SHALL ORDER
3 THE POST-DIVORCE MAINTENANCE BASED UPON THE NEEDS OF THE PAYEE OR THE
4 STANDARD OF LIVING OF THE PARTIES PRIOR TO COMMENCEMENT OF THE DIVORCE
5 ACTION, WHICHEVER IS GREATER, AND UPON THE FACTORS SET FORTH IN SUBPARA-
6 GRAPH ONE OF PARAGRAPH F OF THIS SUBDIVISION. SUCH ORDER MAY BE
7 RETROACTIVELY MODIFIED UPWARD WITHOUT A SHOWING OF CHANGE IN CIRCUM-
8 STANCES UPON A SHOWING OF NEWLY DISCOVERED OR OBTAINED EVIDENCE.
9 J. POST-DIVORCE MAINTENANCE MAY BE MODIFIED PURSUANT TO PARAGRAPH B OF
10 SUBDIVISION NINE OF THIS PART.
11 K. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
12 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH,
13 THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET FORTH IN PARAGRAPHS C, D
14 AND E OF THIS SUBDIVISION SHALL NOT CONSTITUTE A CHANGE OF CIRCUMSTANCES
15 WARRANTING MODIFICATION OF SUCH SUPPORT ORDER.
16 L. IN ANY ACTION OR PROCEEDING FOR MODIFICATION OF AN ORDER OF MAINTE-
17 NANCE OR ALIMONY EXISTING PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH,
18 THE GUIDELINES FOR POST-DIVORCE MAINTENANCE SET FORTH IN PARAGRAPHS C, D
19 AND E OF THIS SUBDIVISION SHALL APPLY.
20 S 3. Subparagraph 1 of paragraph b of subdivision 9 of part B of
21 section 236 of the domestic relations law, as amended by chapter 182 of
22 the laws of 2010, is amended to read as follows:
23 (1) Upon application by either party, the court may annul or modify
24 any prior order or judgment as to maintenance, upon a showing of the
25 recipient's inability to be self-supporting [or a substantial change in
26 circumstance or], THE termination of child support awarded pursuant to
27 section two hundred forty of this article, A SUBSTANTIAL CHANGE IN
28 CIRCUMSTANCES including financial hardship, REMARRIAGE OF THE PAYEE IF
29 THE REMARRIAGE RESULTS IN A SUBSTANTIAL CHANGE IN FINANCIAL CIRCUM-
30 STANCES, OR ACTUAL RETIREMENT OF THE PAYOR IF THE RETIREMENT RESULTS IN
31 SUBSTANTIAL CHANGE IN FINANCIAL CIRCUMSTANCES. Where, after the effec-
32 tive date of this part, a separation agreement remains in force no
33 modification of a prior order or judgment incorporating the terms of
34 said agreement shall be made as to maintenance without a showing of
35 extreme hardship on either party, in which event the judgment or order
36 as modified shall supersede the terms of the prior agreement and judg-
37 ment for such period of time and under such circumstances as the court
38 determines. The court shall not reduce or annul any arrears of mainte-
39 nance which have been reduced to final judgment pursuant to section two
40 hundred forty-four of this article. No other arrears of maintenance
41 which have accrued prior to the making of such application shall be
42 subject to modification or annulment unless the defaulting party shows
43 good cause for failure to make application for relief from the judgment
44 or order directing such payment prior to the accrual of such arrears and
45 the facts and circumstances constituting good cause are set forth in a
46 written memorandum of decision. Such modification may increase mainte-
47 nance nunc pro tunc as of the date of application based on newly discov-
48 ered evidence. Any retroactive amount of maintenance due shall, except
49 as provided for herein, be paid in one sum or periodic sums, as the
50 court directs, taking into account any temporary or partial payments
51 which have been made. The provisions of this subdivision shall not apply
52 to a separation agreement made prior to the effective date of this part.
53 S 4. This act shall take effect immediately.
